Yesterday, we reviewed the individual Justices’ voting records in death penalty appeals for the years 1994 through 2005. Today, we look at the second half of our study period, 2006 through 2017.

In Table 303, we report the percentage of each Justice’s votes in death penalty cases which were to affirm or to reverse in part while affirming the sentence for the years 2006 through 2011. No one topped ninety percent during these years in votes to affirm, as Chief Justice Lucas and Justice Arabian both did for the first six years we studied (based on comparatively few votes for each). Five permanent Justices were between eighty and ninety percent affirmances – Chief Justice Cantil-Sakauye (85.71%), Justices Baxter (84.51%), Chin (84.4%) and Corrigan (84.06%), and Chief Justice George (82.76%). Three more voted to affirm between seventy and eighty percent of the time – Justice Werdegar (79.58%), Justice Moreno (77.97%) and Justice Kennard (77.46%). Justice Liu, who joined the Court in the final year of this six year period, voted to affirm in half the death penalty cases he participated in. Pro tem Justices voted to affirm 83.33% of the time.

Votes to reverse in part while affirming the sentence were also more common that they had been earlier. Every Justice but one – Chief Justice Cantil-Sakauye – voted to reverse in part while affirming the sentence in at least 10% of cases. Justice Liu voted that way 25% of the time. Justice Kennard did 13.38% of the time. Justice Moreno cast such votes 12.71% of the time. Chief Justice George (12.07%), Justice Chin (11.35%), Justices Werdegar and Baxter (11.27% each) and Justice Corrigan were next (10.87%).

In Table 304, we review the Justices’ votes to overturn death sentences between 2006 and 2011 – both reversing in part with the sentence vacated, and outright reversals. Pro tem Justices were the most frequent votes to reverse in part and vacate the sentence, casting such votes in 8.33% of their cases. Justice Moreno was next at 5.93%, followed by Justices Kennard and Werdegar (4.93% each), Chief Justice George (3.45%), and Justices Corrigan, Chin and Baxter (2.17%, 2.13% and 2.11%, respectively). Although he participated in far fewer cases than the others, joining the Court in the final year of our six year period, Justice Liu led in reversals, voting to reverse 25% of the time. Chief Justice Cantil-Sakauye was next among the permanent Justices, voting to reverse in 4.76% of cases. Justices Kennard and Werdegar both voted to reverse 4.23% of the time. Justice Moreno was next at 3.39%, followed by Justices Corrigan, Chin and Baxter (2.9%, 2.13% and 2.11%, respectively) and Chief Justice George (1.72%).

In Table 305, we report the first half of the data for the years 2012-2017. During these years, the Court added two additional Democratic appointees, and the data clearly reflects the shift. Votes to affirm in full were about ten percentage points less common across the board. Justice Kennard was the most frequent vote to affirm at 75.47%. Justice Baxter voted to affirm 74.24% of the time, and Justice Chin did in 70.43% of his cases. Justice Corrigan voted to affirm 69.3% of the time, and Chief Justice Cantil-Sakauye did in 68.7%. Justice Werdegar voted to affirm in 64.91% of her cases, and Justice Liu did in 60.18%. The two least frequent votes to affirm in full were the two newest Justices – Justice Kruger (57.45%) and Justice Cuellar (53.19%). Even pro tems were down substantially in votes to affirm – pro tems only voted to affirm in 55.56% of their cases.

The most frequent vote to reverse in part while affirming the sentence among the permanent Justices was Justice Cuellar, who cast such votes in 23.4% of his death penalty cases. Justices Kruger and Liu were next at 21.28% and 20.35%, respectively. The Republican nominees were up in this category during these years too. Justices Corrigan and Werdegar voted to reverse in part affirming the sentence 19.3% of the time. Chief Justice Cantil-Sakauye did 19.3% of the time. Next were Justice Chin (18.26%), Justice Baxter (16.67%) and Justice Kennard (15.09%). Pro tem Justices voted to reverse in part affirming the sentence in 22.22% of their cases.

In Table 306, we report each Justice’s frequency of voting to reverse in part with the sentence vacated, and to reverse outright. Justice Kruger was the most frequent vote to reverse in part at 17.02%. Justices Cuellar and Liu were next at 14.89% and 14.16%. Justice Werdegar voted to reverse in part in 10.53% of her cases. Chief Justice Cantil-Sakauye did so in 8.7%, Justice Corrigan in 7.89%, Justice Chin in 7.83%, and Justice Baxter in 6.06%. Justice Kennard was the least frequent vote to reverse in part at 5.66%.

Justice Cuellar was the most frequent vote to reverse outright, voting that way in 8.51% of death penalty cases he participated in. Justices Liu and Werdegar were next (5.31% and 5.26%, respectively). Justice Kruger voted to reverse in 4.25% of cases. Justices Kennard and Corrigan were next (3.77% and 3.51%), followed by Chief Justice Cantil-Sakauye and Justice Chin (3.48 each) and Justice Baxter (3.03%).

In Table 307, we mix and match the data for the last two periods – 2006 to 2011 and 2012 to 2017 – to better illustrate a noteworthy trend. Students of appellate decision-making have written extensively about “panel effects” for many years – the phenomenon of judges voting differently based upon who else is on the same panel (i.e., conservative Justices vote more liberally when sitting with liberals, and more conservatively when sitting with conservatives, and vice versa). Indeed, political scientists have written about the phenomenon as a more basic tenet of group decision theory (as in, voters being polled when surrounded by people who either agree with their attitudes, or don’t).

We report the fraction of cases each Republican nominee has voted to reverse in part with the sentence vacated and to reverse outright in the years 2006 through 2011, compared to the years 2012 through 2017. The data shows clear evidence of a panel effect. For example, in the years 2006 through 2011, Justice Corrigan reversed in part in 2.17% of her cases and reversed outright 2.9% of the time. For the years 2012 through 2017, she voted to reverse in part in 7.89% of cases, and to reverse 3.51% of the time. Justice Werdegar’s numbers were up significantly too. For the years 2006 to 2011, she averaged a partial reversal every 4.93% of the time, and an outright reversal every 4.23% of the time. For the years 2012 through 2017, she reversed in part 10.53% of the time, and reversed outright in 5.26%.

Chief Justice Cantil-Sakauye didn’t reverse in part in any case between 2006 and 2011. She reversed in part in 8.7% of cases between 2012 and 2017. She voted to reverse outright in 4.76% of cases between 2006 and 2011, and to reverse in 3.48% of her cases from 2012 on. Justice Chin reversed in part and reversed outright in the same fraction of cases between 2006 and 2011 – 2.13%. Between 2012 and 2017, Justice Chin reversed in part in 7.83% of his cases, and reversed outright 3.48% of the time. Justice Baxter reversed in part and reversed outright 2.11% of the time for the years 2006 through 2011. For the years 2012 through 2017, he reversed in part in 6.06% of cases, and reversed outright 3.03% of the time.

Join us back here next Thursday as we turn our attention to a new subject in our ongoing study of the California Supreme Court’s decision making.

About this Blog

In the next few years, data analytics will revolutionize litigation. At the California Supreme Court Review, we’ve mined dozens of data points from every one of the more than 3,000 decisions handed down by the California Supreme Court from 1990 through 2017. We use that unique database to share new insights culled from tens of thousands of pages of opinions about the Justices and their decision-making process, the parties and issues which come before the Court.